Just Security Q&A with Rep. Adam Schiff on ISIL AUMF

Rep. Adam Schiff (D-Calif.), ranking member of the House Intelligence Committee, has become a prominent voice among lawmakers demanding that Congress authorize the fight against ISIL while working ultimately to bring a close to the 14-year old war against al-Qaeda that was authorized in 2001.

In pursuit of these goals, the California Democrat’s recent draft authorization for the use of military force (AUMF) includes a sunset on the authority to fight ISIL after three years, a sunset on the 2001 AUMF also in three years time, a repeal of the 2002 war authorization against Iraq, and features restrictions on the use of ground combat forces. Given Rep. Schiff’s prominent work on this matter and his position on the intelligence committee, he will likely play a central role in deliberations on the Hill. Just Security wanted to know more about Rep. Schiff’s thinking behind his draft AUMF along with his thoughts on the White House’s newly released proposal.

Below is our Q&A with the Congressman where we learned of his concerns about the White House’s definition of “associated forces,” his envisioned role for American ground troops in the fight against ISIL, and his response to our query about relationships between the ISIL authorization and operations by intelligence and other agencies.

Click through the jump to read the interview.

1. Scope of the mission: Do you see an ISIL AUMF as limiting the use of force to containing ISIL to its current territory, rolling ISIL back to Syria and ensuring it no longer poses a major threat to the United States or Iraq, or using force to destroy the group completely? In other words, what is the scope of the mission?

Rep. Adam Schiff: I think the goal must be the defeat of ISIL, and indeed the Administration has defined the mission as degrading and ultimately defeating ISIL. That does not mean, of course, that we take on this mission alone, or that it necessitates that America provide the ground troops instead of local forces. In this case, by limiting the means available to conduct a campaign and defining the duration of the conflict and its geographical battlefield, we can tailor our authorization to what the President has said is necessary and require the President to return to Congress if it is essential to make a major course correction. This ensures that Congress plays its constitutionally mandated role as a proper check on the President’s war-making authority.

A winning strategy against ISIL must rely on indigenous ground forces and societies that are mobilized from within – where ISIL’s brand of takfirism is repudiated from the pulpit and actively opposed by the people, and where the government takes action to mend sectarian divides. American air power, American training and equipment, American advice, and the limited use of special operations forces can provide the military edge to our partners on the ground that they need, but we cannot ask another generation of American troops to take on a fight that of necessity belongs to those who live in the region.

2. Definition of “Associated Forces”: Do you have any concerns about the President’s proposed AUMF extending the authorization for the use of force to “associated forces” and “closely-related successor entit[ies]” of ISIL?

Rep. Adam Schiff: Yes, the whole notion of “associated forces” is one of the primary legal arguments the Administration uses to justify military force under the 2001 authorization against a host of terrorist organizations that were not even in existence at the time it was passed. In combination with the lack of any geographic limitation, this broad terminology could be used to authorize the introduction of massive numbers of American ground forces to combat Boko Haram or any other terror group claiming an ideological affinity to ISIL.

Rep. Adam Schiff: My draft AUMF contemplates the use of special operations troops and others in limited roles, which could include operations against high value targets. In my bill, we provided that the restriction on the use of ground forces in a combat role “does not include special operations forces or other forces that may be deployed in a training, advisory, search and rescue, or intelligence capacity.”

4. Sunset on 2001 AUMF: If the Senate Foreign Relations Committee or House Intelligence Committee or another committee adopts legislation that includes a sunset of the 2001 AUMF, even if the Congress does not eventually include that provision in the final AUMF, will you consider that a milestone in moving America away from a perpetual war?

Rep. Adam Schiff: It is hard to see how any AUMF that does not include a sunset of the 2001 AUMF really solves the problem, since the precedent by the Administration would extend to the next (and potentially beyond that). Any sunset on any ISIL-specific AUMF would allow a future administration to argue that the legal justification for continued operations against ISIL (or an “associated force”) had reverted back to the 2001 resolution. I believe that the Administration is open to amending its language to clarify that the new authorization constitutes the sole authority to use force against ISIL (apart from Article II) – and this is positive – but it would be far better to sunset both the new and old authorities after the same 3 year period.

5. Covert operations: The President’s proposed AUMF and your proposed AUMF explicitly refer to authorization for the use of force by the “Armed Forces of the United States.” Will Congress play a role in authorizing and/or placing constraints on the use of force against ISIL by other US government agencies such as intelligence or law enforcement — or contractors?

Rep. Adam Schiff: Operations by other entities of the government are governed under different laws and procedures that would not fall within the scope of an AUMF, but which are properly considered by Congress in other contexts, such as funding requests and through the oversight of the House Permanent Select Committee on Intelligence.

6. Policy on the Hill: Professor Harold Koh, Legal Adviser to the Department of State (2009–2013) and Professor Jack Goldsmith, Head of the Office of Legal Counsel in the Department of Justice (2003–2004), each separately recommended that the President propose a draft AUMF modeled on your proposal. The President’s proposed AUMF, however, includes few of the constraints outlined in your proposal. What kinds of explanations from the administration do you want about why these limits were left out of the draft AUMF?

Rep. Adam Schiff: I appreciated the endorsement of Professors Koh and Goldsmith, and other legal scholars who argued that my proposed AUMF was a worthy model. I also understand the institutional and other constraints that guided the White House proposal. Plainly, the White House does not want to be in a position to have to take action against ISIL outside of the scope of a new authorization and claim reliance on Article II. Nor does it want to have to come back to such a dysfunctional Congress if circumstances change.

But while I appreciate those concerns and I am sympathetic to them, I do not want to see Congress legislate itself into irrelevance by writing a blank check. The Framers divided the war powers in a way that allowed for checks and balances and the dynamic interplay between the branches. And while it is understandable that one branch would be resistant to constraining itself, I was disappointed by the exclusion of a concurrent sunset of the 2001 AUMF when the new authorities expire. This would have not only forced the new President and Congress to harmonize the authorities under which any war effort would be undertaken in the future, but would have also met the President’s commitment to revise and ultimately repeal the 2001 authorization.